Delay in deciding mercy petitions on death penalty

Delay in deciding on a mercy petition on death penalty becomes a ground for challenging it by filing a petition in Supreme Court, seeking commutation of death penalty to life imprisonment on this ground alone. What does one expect? That, at least this petition will not be delayed. Well, there is a further delay in deciding this petition itself. Moreover, when a 5-Judge Constitution Bench of the Supreme Court has already settled this legal issue as to how a petition challenging delay in deciding a mercy petition has to be dealt with, isn’t it ironical and unfortunate that a 3-Judge Bench of the Supreme Court decides to wait for a 2-Judge Bench to deliver its verdict on the same legal issue? Can a 2-Judge Bench of the Supreme Court sit over a 5-Judge Bench decision? Should a 3-Judge Bench of the Supreme Court wait for a decision by a 2-Judge Bench on a question of law, and then, will it be bound by it (mind you, only the question of law is the same while the cases and the facts are entirely different)? Can’t a 3-Bench decide the matter before it on the basis of a 5-Judge Bench decision already available on the same question of law? Can a writ petition be further delayed, where the very question involved in it is the delay in deciding mercy petition, keeping in view the fact that a case involving death penalty is one of the most important cases (if not THE most important case) that should get the immediate attention of the Supreme Court? Should the Supreme Court keep its judgment reserved for about 10 months (and counting), after concluding its hearing, when the issue involved was the delay of about 8 years in deciding a mercy petition on death penalty? Well, these are some questions that I am repeatedly asking myself for last few days that I thought of sharing with you.

Last week (on 20 February 2013), the Supreme Court stayed the execution of four associates of Veerappan for six weeks on the basis of a writ petition filed before it that seeks commutation of death sentence awarded to them on the ground that there was a delay of about 8 years in deciding their mercy petitions by the President of India causing serious mental agony and violating their fundamental rights. It is noteworthy that these four Veerappan associates, namely, Gnana Prakasam, Simon, Meesakaara Madiah and Bilavendran, are accused of killing 22 policemen and forest officials on 9 April 1993 in Palar in Karnataka in a landmine blast. The Supreme Court had awarded death penalty to them about nine years back in January 2004, and thereafter, they had filed mercy petitions before the President of India. It was after a long delay of about 8 years that their mercy plea was rejected by the President on 12 February 2013. Now, they have approached the Supreme Court to commute their death sentence to life imprisonment on the ground of there being an inordinate delay in deciding their mercy petition. The main reason cited by a 3-Judge Bench (headed by the Chief Justice) of the Supreme Court for staying the execution of these 4 convicts for six weeks was to wait for the decision of a 2-Judge bench of the Supreme Court on a similar issue in another case.

So, which is this other case? Last year, on 19 April 2012, a 2-Judge Bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya had reserved its judgment on a similar petition filed by Devender Pal Singh Bhullar, facing death penalty in 1993 Delhi blast, who had alleged that there was a delay of 8 years in deciding on his mercy petition. The Supreme Court is yet to deliver the judgment which was reserved about 10 months back after concluding hearing on the said petition. It may be mentioned that in the year 2002, the Supreme Court had confirmed death penalty to Bhullar by a majority decision of 2-1. His mercy petition was rejected by the President of India in May 2011 after a long delay of about 8 years. In May 2011, the Supreme Court had entertained a petition challenging the 8 years’ delay in deciding the mercy plea. Now, after about two years, the Supreme Court is yet to decide on this petition, even though it concluded the hearing on 19 April 2012 and reserved it for judgment on that day.

Likewise, another SLP (Crl) No. 1105 of 2012, filed by Mahindra Nath Das challenging the delay in execution of death penalty due to delay of about 11 years in deciding on his mercy petition by the President, was also heard along with the above case of Devender Pal Singh Bhullar. This case is also currently pending before the Supreme Court.

It may be pointed out that in a similar way, writ petitions had been filed by three convicts (V. Sriharan alias Murugan and two others) facing death penalty in Rajiv Gandhi killing case before Madras High Court for commutation of their death penalty to life imprisonment in view of inordinate delay in deciding on their mercy plea. These three writ petitions had been filed in the year 2011. By an order dated 01.05.2012 [see, L.K. Venkat v. Union of India, (2012) 5 SCC 292], the Supreme Court has allowed the transfer of these writ petitions from Madras High Court to Supreme Court. Since then, these writ petitions are also pending before the Supreme Court for decision. It is pertinent to mention that in August, 2011, the President had rejected the mercy plea of these three convicts.

These are a few illustrative high-profile cases wherein there was a considerable delay in deciding on the mercy petitions filed by convicts facing death penalty. There have been several other similar cases in the past also.

It is ironical that there should be further delay in deciding the writ petitions filed before superior courts which have been filed mainly for challenging the inordinate delay in deciding the mercy petitions by the President.

Given that death penalty is the most extreme penalty that can be awarded to a person, one fails to understand as to why should there be so much delay in these important cases. Why can’t these cases be given topmost priority and decided expeditiously? After all, there are not many such cases in which death penalty is awarded. It is only in the “rarest of rare cases” that death penalty can be awarded to a person. Even at the worst of the times, when no decisions were being taken on such mercy petitions by the President for a long time, the total number of such petitions was not more than 50. It is not that the President is required personally to decide such mercy petitions. In fact, he is required to decide the mercy petitions as per the advice of the Home Minister. The Home Minister is also assisted by a battery of senior officers and lawyers. No doubt, remarks are also called from the State Governments concerned. However, one fails to understand why a decision on a mercy petition should take more than a month or so. What one sees in practice is that such petitions are kept pending for several years, without appreciating the importance and urgency that needs to be attached to such mercy petitions.

In October, 2006, I had written an article (Show mercy at your own peril) on the mercy petition for Afzal Guru. Little did I realise at that time that it was actually going to take a long period of about 7 years to decide this mercy petition. The mercy petition in Afzal Guru case was finally rejected by the President on 3 February, 2013, and he was finally hanged till death on 9 February, 2013, maintaining a very high level of secrecy. In the absence of such secrecy, there is no doubt that a petition would have been filed in the Supreme Court or a High Court for commutation of his death penalty to life imprisonment in view of the long delay in deciding on his mercy petition by the President of India. And, thereafter, such writ petition would also have remained pending for long before courts.

The most unfortunate part is that after long and unpardonable delays in deciding mercy petitions by the President, the writ petitions filed by the convicts before courts remain pending for long periods leading to further avoidable delays. As we have noticed above, the writ petitions filed by the killers of Rajiv Gandhi, and by the 1993 Delhi blast accused Devender Pal Singh Bhullar, are pending for about two years since 2011 before the courts, in which the main ground is the inordinate delay in taking decision on their mercy petitions. As seen above, in the case of Devender Pal Singh Bhullar, the Supreme Court has not delivered the judgment for last about 10 months even after concluding the hearing on 19 April 2012 and reserving the judgment on that day.

It is pertinent to point out that in the case of Triveniben v. State of Gujarat, (1989) 1 SCC 678 : AIR 1989 SC 1335, which was decided by a 5-Judge Constitution bench of the Supreme Court, it was observed by Justice Jagannatha Shetty (who delivered a concurring judgment supporting the main judgment) as under (page 714, para 76 of SCC):

“If the court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of.”

In fact, in that case, the main judgment delivered on behalf of 4 Judges by Justice G.L. Oza also emphasizes (page 694, para 16 of the SCC) the fact that death penalty cases are given top priority, and that it is expected that even in Supreme Court the matters where the capital punishment is involved will be given top priority and shall be heard and disposed of as expeditiously as possible.

Unfortunately, the above dictum of the Supreme Court is not followed in its true spirit.

It may also be pointed out that in the aforesaid Triveniben case, the Constitution bench of the Supreme Court has decided the question of law as to what would be the consequences of delay in execution of death penalty. This Constitution bench was constituted to decide this question of law since there was conflict in the two decisions of the Supreme Court in T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, and Sher Singh v. State of Punjab, (1983) 2 SCC 344, and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, (1985) 1 SCC 275.

In Vatheeswaran case, a 2-Judge Bench had held that two years’ delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life.

However, in Sher Singh case, a 3-Judge Bench held that a condemned prisoner has a right of fair procedure at all stages (trial, sentence and incarceration) but delay alone is not good enough for commutation and that two years rule could not be laid down in cases of delay. It was further observed that in the context of the nature of offence and delay, the court could consider the question of commutation of death sentence.

In the aforesaid Javed Ahmed case, it was held that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind would entitle him for commutation of sentence of death into imprisonment for life.

In view of these conflicting decisions, the question of delay in cases of death penalty was referred to the 5-Judge Constitution bench in the aforesaid Triveniben v. State of Gujarat case. In view of urgency of the matter and to avoid further delay, the Supreme Court first delivered its conclusions, which were reported as Triveniben v. State of Gujarat, (1988) 4 SCC 574 : AIR 1989 SC 142; subsequently, detailed reasons in support of these conclusions were delivered separately, which were reported as Triveniben v. State of Gujarat, (1989) 1 SCC 678 : AIR 1989 SC 1335. A combined reading of the aforesaid conclusions and the reasons shows that the Supreme Court held as under:

Undue long delay in execution of the sentence of death will entitle the condemned person to approach the Supreme Court under Article 32.

However, the delay which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the Apex Court is pronounced, i.e., when the judicial process has come to an end.

While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself shall not be considered.

The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive.

When mercy petitions under Article 72 or 161 are received by the President and the Governor, it is expected that these petitions shall be disposed of expeditiously.

Supreme Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death.

The Supreme Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life.

No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in the aforesaid Vatheeswaran case was held not to lay down the correct law and therefore to that extent that decision was overruled.

It is germane to mention that a total of 5 writ petitions were heard together in the aforesaid Triveniben case. However, the Supreme Court agreed to commute the death penalty to life imprisonment in only one of these cases [namely, for Harbhajan Singh in W.P. (Cri) No. 186 of 1986]; all other writ petitions were dismissed.

It is thus clear that a 5-Judge Constitution bench of the Supreme Court has already decided the legal question of delay in deciding mercy petitions on death penalty.

Moreover, the aforesaid Constitution bench judgment has been applied in the case of Jumman Khan v. State of U.P., (1991) 1 SCC 752 : AIR 1991 SC 345 : 1991 Cri LJ 439, wherein it was held that the delay in the execution of death penalty in view of mercy petitions in that case was not an undue long delay, and accordingly the Supreme Court refused to interfere in the execution of the death penalty on this ground.

Likewise, the ratio of the aforesaid Constitution bench judgment was applied in the case of Daya Singh v. Union of India, (1991) 3 SCC 61 : AIR 1991 SC 1548 : 1991 Cri LJ 1903, and in this case, the Supreme Court agreed to commute the death sentence to life imprisonment in view of delay of more than two years in deciding on mercy petition in the absence of reasonable explanation for such delay.

Thus, the question of law is already decided by a Constitution Bench of 5 Judges. There is no need for a 3-Judge Bench to further wait for a 2-Judge decision on that legal question. Each case has to be decided on the facts of its own, by applying the legal principle laid down in the aforesaid 5-Judge Constitution Bench decision. Therefore, there should not be any further delay in these death penalty cases wherein the only question before the Supreme Court is about the effect of the inordinate delay in deciding on the mercy petitions. Any further delay will only lead to a fait accompli.

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

This website is meant only for providing free legal information to its visitors, without any warranty. Please consult legal experts with full details of your case before relying upon the advice given. Your access and use of this website is subject to its Terms of Use. Any reference to any advocate on this website does not constitute a referral or endorsement, nor does it constitute an advertisement.